Cooper v. State

• Citation: 259 Ind. 107,284 N.E.2d 799
• Decision Date: 19 July 1972
• Docket Number: No. 770S166,770S166
• Parties: Earl Eugene COOPER, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 799

284 N.E.2d 799

259 Ind. 107

Earl Eugene COOPER, Appellant, v. STATE of Indiana, Appellee.

No. 770S166.

Supreme Court of Indiana.

July 19, 1972.

Pressler & Mellinger, by Lee F. Mellinger, Arnold & Denton, by David A. Denton, Elkhart, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Robert A. Zaban, Deputy Atty. Gen., for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted upon both of two counts in a trial by jury, upon an affidavit charging Second Degree Burglary under 1956 Repl. Burns Ind.Stat.Ann. § 10--701, IC 1971, 35--13--4--4, Acts of 1941, Ch. 148, § 4, and with being an Habitual Criminal under 1956 Repl. Burns Ind.Stat.Ann. § 9--2207, IC 1971, 35--8--8--1, Acts of 1907, Ch. 82, § 1. His appeal avers the following errors:

(1) Overruling a motion to dismiss Count No. 2 predicated upon the premise that the sentences upon the two felony convictions specified in the affidavit were served concurrently.

(2) Overruling Defendant's motion for a change of venue from the county.

(3) Overruling Defendant's motion for a continuance during the progress of the trial.

(4) Admitting evidence of the statements made by the defendant at the time he was apprehended and arrested.

(5) Discharging a regular juror and substituting an alternate juror after deliberation had commenced.

(6) Entry of the trial deputy prosecutor and a police officer into the jury room during deliberation of the jury.

(7) Verdict of the jury upon Count 2 (Habitual Criminal) as not being sustained by the evidence and being contrary to law.

Defendant was apprehended in the act of committing a second degree burglary. No question with reference to the sufficiency of the evidence to sustain the verdict upon that count has been raised.

(1) The motion to dismiss does not appear in the record, and it cannot be determined with certainty whether it was filed and overruled or if the defendant failed to file it after the court indicated that it would be summarily overruled. The motion to dismiss was a plea in abatement, which must precede the plea in bar. Bynum v. State (1954), 233 Ind. 269, 118 N.E.2d 898. Having been filed eight days following his plea to the charge, the motion was filed too late. The issue raised by such motion, however, is rendered moot by our holding upon the seventh proposition.

(2) On March 18, 1968 the defendant filed a verified motion for a change of venue from the county, under that portion of current Criminal Rule 12 which was then designated Rule 1--12c. The trial court denied said motion. The defendant acknowledges that the denial of such motion was within the discretion of the trial court but contends that it was error to do so without a hearing thereon. We have recently held that to deny an uncontroverted, verified application for change of venue without affording petitioner some opportunity to present additional evidence in support of said application is an abuse of discretion by the trial court, and that such a denial constitutes reversible error. Hanrahan v. State (1968), 251 Ind. 325, 241 N.E.2d 143. The causes for change of venue from the county are still governed by 1956 Repl. Burns Ind.Stat.Ann. § 9--1301, Acts of 1905, ch. 169, § 203 as amended by Acts of 1972, Ch. 132, § 10, IC 35--1--25--1 and are specified as 'the excitement or prejudice against the defendant in the county or in some part thereof.' The defendant's motion did not charge such prejudice or excitement. Assuming the allegations of the motion to be true, they did not indicate prejudice or excitement or a likelihood thereof by such a segment of the populous of the county or any portion thereof as to be prejudicial to his right to a fair trial. It was, therefore, apparent upon the face of the motion that the relief sought could not properly be granted; and a summary denial under such circumstances is not error.

(3) The defendant, during the progress of the trial, requested a continuance to enable him to subpoena a witness to refute evidence that he was an habitual criminal as defined by the statute. It is now his contention that the testimony of such witness would impeach the convictions specified in the charging affidavit. We see no abuse of discretion in the court's refusal to grant a continuance in the middle of the trial to enable a party to present evidence which, by the exercise of due diligence, could have been available to him without the necessity of such an extraordinary proceeding. Further, this issue was governed by 1967 Replacement Burns Ind.Stat.Ann. § 2--1301, Acts of 1881 (Spec.Sess.) Ch. 38, § 374, the substance of which is now incorporated into Trial Rule 53.4, IC 1971, 34--5--1--1, and the requirements thereof were not complied with.

(4) The trial prosecutor asked the arresting officer to describe the defendant's attitude at the time of the arrest. The defendant, at his insistence and despite the trial court's admonishments against it, was representing himself, and he interposed the following objection:

'My attitude hasn't got nothing to do with it. This is a trial - - - attitude. I don't know how you get attitude brought up; obscene language. This is a trial for burglary, and he is trying to try me for obscene language, which I admit I probably did use.'

question was withdrawn and rephrased. 'What if anything, did Mr. Cooper say at that time?' To which the defendant interposed the following objection, which was overruled: 'I object to that question, because I led the witness into knowing what the answer is now. That is a pretty good way of doing that.'

Defendant now urges that the officer's testimony with respect to the statements and conduct of the defendant were inadmissible by reason of the proscriptions of Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. A party cannot change or add to his objections or the grounds thereof in the reviewing court. Louisville, N.A. and C.R Co. v. Rush (1891), 127 Ind. 545, 26 N.E. 1010; Glen Park Democratic Club, Inc. v. Kylsa (1966), 139 Ind.App. 393, 213 N.E.2d 812.

Had the defendant presented the Miranda issue as the basis for his objection when the testimony was offered, it, nevertheless, would have been overruled, because the defendant's statements had been freely, voluntarily and spontaneously made. The requirements of warning and waiver imposed by Miranda v. Arizona (supra) apply only to custodial interrogation. New v. State (1970), Ind., 259 N.E.2d 696.

As to the defendant's claim of irrelevancy made in the trial court, the evidence was relevant and admissible as bearing upon the defendant's consciousness of guilt. Smith v. State (1961), 241 Ind. 665, 175 N.E.2d 27; Davidson v. State (1933), 205 Ind. 564, 187 N.E.2d 376.

(5) After the jury commenced its deliberation, one of the jurors became ill. He was discharged by the court and an alternate juror substituted. The transcript reveals no objection by the defendant to the discharge and substitution; and as this Court has said on many occasions, objections not made in the trial court cannot be raised on appeal. Johnson v. State (1972) Ind., 278 N.E.2d 577; Barnes v. State (1971), Ind., 266 N.E.2d 617.

(6) The defendant has charged that the trial deputy prosecutor and a police officer entered the jury room during deliberation, but there is nothing in the record to substantiate such claim. Error alleged but not disclosed by the record is not a proper subject for review. Fortune v. State (1937), 212 Ind. 325, 9 N.E.2d 81; Campbell v. State (1897), 148 Ind. 527, 47 N.E. 221.

(7) Lastly, the defendant...